Why a GOP Senate Takeover Does Matter

A few weeks ago I opined that a Republican takeover of the Senate wouldn’t change much of anything because the House already stands in the way of almost anything Obama wants to do. But Jonathan Chait points out that there’s one role specific to the Senate that could be a very big deal if the Republicans take over:

The potential for true crisis lies in the smaller possibility of a Supreme Court vacancy. The Democrats’ nuclear option allowed them to fill a regular judicial seat with a straight majority vote, but did not allow them to fill Supreme Court seats this way.

Imagine 75-year-old Stephen Breyer, or 81-year-old Ruth Bader Ginsburg, decides to retire. Perhaps they suffer a health setback, or simply grow tired of the grinding conflict, or perhaps warm to the logic of stepping down when an ideologically friendly jurist is likely to replace them.

Would the Republican majority let Obama appoint a mainstream center-left nominee to the seat? The last vacancy occurred in 2010, before Republicans swept into control of the House. Even though Obama’s nominee, Elena Kagan, possessed sterling bipartisan support, a mere five Republican senators voted for her confirmation. Three of them — Richard Lugar, Olympia Snowe, and Judd Gregg — have departed, and the GOP caucus emerged from the 2010 Tea Party wave filled with terror at any vote that could even hint at ideological treachery.

Now imagine a different possibility. Suppose one of the five Republican-appointed seats opened up. None of them would voluntarily surrender a seat at the end of a Democratic president’s tenure, of course. But when the hypothetical gavel transfer to Mitch McConnell takes place next January, Antonin Scalia and Anthony Kennedy will both be 78 years old. The actuarial odds of a 78-year-old man dying within a given year are approximately 5 percent — we will have two of them, with two years of Obama’s term each. (The odds of death rise to 5.6 percent at age 79, for those morbidly inclined.) We are not talking about a freak occurrence.

What would happen then? Would a Republican Senate let Barack Obama — fundamental transformer of America, shredder of the Constitution — appoint a new swing justice? Given a backdrop in which conservatives, having grown deeply pessimistic about their political future, have invested deeply in a legal movement that uses aggressive readings to roll back the state? With every conservative interest group mobilizing for battle, with a vast array of social and economic policy hanging in the balance?

It may seem implausible that Republicans would simply refuse to allow Obama to appoint any justice to such a vacancy. That is only because things that haven’t happened before are hard to imagine. But such a confrontation is not only a logical outcome but the most logical outcome. Voting to flip the Supreme Court would be, if not a political death warrant for a Republican Senator, then certainly taking one’s political life into one’s own hands. Politicians do not like political death warrants — certainly not for the benefit of the opposing party’s agenda.

The modern pattern in American politics is that tactics that are legally available, but never used for reasons of custom, eventually become used. The modern pattern is also that the Republican Party, which is the most ideologically cohesive and disciplined party, leads the way.

That’s a good point, though I think it’s considerably more likely that a vacancy would come from the liberal side of the court in the next few years. But regardless of how it might come about, add one more conservative justice to the Supreme Court to replace one of the more liberal members of the court and we are well and truly fucked.

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  • colnago80

    Of course, if one of the conservative judges died, that would leave the court divided 4 to 4, which would reduce the possibility of lower court rulings being overturned. In particular, upholding Roe vs Wade would no longer depend on Kennedy’s vote.

  • John Pieret

    Obama could always try a “stealth candidate” like Bush the First did with David Souter. But, of course, Bush only thought he was getting a conservative.

  • mikeyb

    If you’re average garden variety voter particularly male was even a scintilla as informed about politics or the Supreme Court, as they are the NFL we might have an informed electorate. Given that Americans have been consistently propagandized, made into consumer puppets and stupidified since the time of Reagan, it is increasingly becoming difficult even to run a plutocracy. In today’s America nothing would surprise me up to and including a President Ted Cruz. Maybe then they can resurrect Robert Bork for the Supreme Court.

  • brucegee1962

    The corollary I’ve been hearing is that Bader Ginsberg, if she really wanted to do what was best for the country, should have retired already — maybe last year. By now it might be too late — by the time an appointment could be made, the GOP might be able to run out the clock until November. This is nothing against her as a jurist — she’s done a fine job — but it’s dangerous for a Supreme to convince themself they’re above political considerations.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    Obama never reaches across the aisle, and when he does he doesn’t even thank the GOP for slapping his hand away. This, in short, is what Obama gets for being so divisive…

  • Suido

    Are those actuarial odds controlled for the wealth and health care available to supreme court jurists?

  • marty9175

    It’s much worse than that. If the GOP retains the House and takes the Senate, they will impeach Obama and remove him from office. What? No evidence of high crimes and misdemeanors? What does that matter to the Benghazi/IRS crowd?

    We should not underestimate the corruption of today’ Republican Party.

  • D. C. Sessions

    It’s much worse than that. If the GOP retains the House and takes the Senate, they will impeach Obama and remove him from office. What? No evidence of high crimes and misdemeanors? What does that matter to the Benghazi/IRS crowd?

    The chances of the PoG taking 51 seats in the Senate this year are a bit better than even.

    The chance of them taking the 67 seats necessary to remove a President from office are pretty much zero, barring a rash of deaths on the Democratic side of the aisle.

    • marty9175

      Ah, I thought a simple majority would do it. Thanks!, I’ll be able to sleep again.

  • Nihilismus

    @9 marty9175

    Ah, I thought a simple majority would do it. Thanks!, I’ll be able to sleep again.

    It should also be noted that for the impeachment process to start, only the House needs to have a majority — the Senate is only tasked with holding the impeachment trial and can only convict with 2/3 of the Senate. So nothing is stopping the Republican House from impeaching the President right now, other than enough establishment Republicans realizing that Republicans will lose support without any possibility of the Senate actually removing the President.

  • http://www.rodlamkey.net reverendrodney

    Question: if two justices pass on, can the court still function? Not that I’m hoping that Scalia and Thomas get hit by a meteor or anything. But what if?

  • Usernames are smart

    if two justices pass on, can the court still function?

    — reverendrodney (#11)

    If there’s 1 justice left on the court, it can still function. There is nothing except tradition that sets the number of justices to 9.

    When SCOTUS kept ruling against his New Deal, FDR threatened to “pack the court” by appointing enough new-deal-sympathetic justices to grant a clear majority. The court backed down.

    There’s nothing–other than the Senate–to prevent any president from appointing any additional justices, or none. And that’s where a progressive president can win against a Teabagging congress:

    Say that Scalia and Thomas retire. The president nominates Thomas Treehugger and Fredia Freelove, which the GOP promptly shoots down, eagerly rubbing their hands at shooting down the next nominee…and there isn’t one. The court is now tilted (ever so slightly) to the left, 4-3.

    And there is much wailing and gnashing of the teeth.

  • Childermass

    Usernames are smart @ 12: “There’s nothing–other than the Senate–to prevent any president from appointing any additional justices, or none. ”

    That is not true. The House also has a say. The Senate has the advice and consent power which the House lacks, but the House does have to consent to any new laws and the number of seats on the court is determined by law. Thus Obama cannot try to appoint a 10th justice unless Congress passes a law creating an additional seat on the high court. FDR’s court packing plan, Judicial Procedures Reform Bill of 1937, failed to pass Congress.

  • pocketnerd

    Thus Spake ZaraUsernames are smart, #12:

    There’s nothing–other than the Senate–to prevent any president from appointing any additional justices, or none. And that’s where a progressive president can win against a Teabagging congress:

    Say that Scalia and Thomas retire. The president nominates Thomas Treehugger and Fredia Freelove, which the GOP promptly shoots down, eagerly rubbing their hands at shooting down the next nominee…and there isn’t one. The court is now tilted (ever so slightly) to the left, 4-3.

    And there is much wailing and gnashing of the teeth.

    I’d be pretty uncomfortable with that kind of end run around the separation of powers, even if it’s “my team” doing it.

  • dogmeat

    I’d be pretty uncomfortable with that kind of end run around the separation of powers, even if it’s “my team” doing it.

    To be fair, while they could temporarily benefit from such a move, it wouldn’t be an end run by the Democrats. In the scenario presented, they appointed a legitimate, qualified justice and that justice was blocked, followed by another legitimate qualified justice. The Republican controlled senate would have gotten what it desired, blocking the appointments of that “occupier in chief.” The end result is that they give control of the highest court to their opponents until 2017. They might be wiling to do so based on the assumption that they would win in ’16 and the new president would have the chance to “liberate” the court.

    What would be interesting, in such a scenario, would be if the 2016 election looked like they were about to lose. Would the GOP controlled senate rather allow Obama to nominate two justices, or Clinton? Would the rabid rhetoric of the Tea Party allow them to do either?

  • Azkyroth Drinked the Grammar Too :)

    The chance of them taking the 67 seats necessary to remove a President from office are pretty much zero, barring a rash of deaths on the Democratic side of the aisle.

    Of course, they’ve been vaguely threatening violence against politicians they don’t like for a while now….

  • Azkyroth Drinked the Grammar Too :)

    I’d be pretty uncomfortable with that kind of end run around the separation of powers, even if it’s “my team” doing it.

    You may be fortunate enough to be on a “team” with people who don’t feel obligated to bring a Fisher Price table knife to a gunfight they didn’t start. I wouldn’t count on it, though.